Wednesday, July 04, 2007

Subpoenas for computers and data

I’ve talked a lot about Fourth Amendment constraints on law enforcement officers’ ability to search for and seize computer equipment and data. That’s one of the two models of criminal investigation we have in the United States.

Today, I want to talk about the other model and how it operates with regard to the government’s obtaining computer equipment and data stored on that equipment.

The “other” model is the grand jury model. The United States is the only country that uses grand juries. The Fifth Amendment to the U.S. Constitution requires that charges for all serious crimes (felonies, essentially) be brought by indictment, and only a grand jury can bring an indictment.

An indictment is a set of charges “returned” by a grand jury. A grand jury is a group of people, who are summoned just like regular trial jurors and sit to determine not guilt or innocence of charges that have been brought, but to decide if there is probable cause to charge someone with a crime, a federal crime, so far. So, the federal system has to use grand juries to charge people; that’s one grand jury function. Part of deciding whether there is probable cause to charge someone with a crime is investigating the possibility that a crime occurred, and that brings me to the second grand jury function. Grand juries, especially at the federal level actively investigate crime by requiring witnesses to appear and testify, under oath (think Scooter Libby), and by requiring individuals and/or corporations to produce evidence, such as records, for the grand jurors to review.

The way a grand jury requires witnesses to show up and testify and individuals or corporations to produce evidence is by issuing a subpoena. Subpoenas (grand jury and otherwise) are of two basic types: A subpoena ad testificandum requires someone to show up and testify; in grand jury practice, it requires someone to appear before the grand jury issuing the subpoena and ask questions put to them by the prosecutor working with the grand jury and by the grand jurors, if they wish to ask the witness questions. A subpoena duces tecum is used to obtain evidence; it requires the person or entity to which it is issued to produce specified evidence to the grand jury on or before a certain date.

Failure to comply with either type of subpoena means that the person or entity that was subpoenaed will be held in contempt. For individuals, this means they will be locked up until they choose to comply. A few years ago, Susan McDougal served 18 months in jail for refusing to testify before the White Water grand jury, and I’m sure we all remember Judith Miller, who spent 85 days in jail before deciding to testify before the Plamegate grand jury. Since corporations and other artificial entities (partnerships) cannot be locked up, they will be required to pay heavy fines (thousands of dollars a day) for each day they refuse to comply with a grand jury subpoena.

Okay, just a little more background and I’ll get to grand jury subpoenas for computers.

If a subpoena recipient does not want to comply with a subpoena, the proper thing to do is to challenge it by filing a motion to quash (not squash, when I was in practice in Chicago I had a client who wanted me to “squash that grand jury subpoena”) with the court that supervises the grand jury. The motion to quash says, essentially, that the subpoena should not be enforced for particular reasons. An attorney might argue, say, that the subpoena would require her to violate attorney-client privilege by testifying or by producing records.

Another basis for challenging a subpoena that requires the production of evidence is to argue that it is overbroad, i.e., asks for too much . . and that brings us to computer subpoenas. Since the whole issue of subpoenas tends to be very complex, I’m going to focus on only one issue in this post, and try to use a couple of cases to illustrate how that issue comes up and why it can be important.

The first case is a state case. States use grand juries, too, in the same ways the federal system does. Most states have county grand juries to investigate and bring charges for local crimes; some states have also statewide grand juries, which investigate larger-scale criminal activity. The first case – In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 907 A.2d 505 (Pennsylvania Supreme Court 2006) – involves a newspaper’s challenge to a statewide grand jury subpoena.

Here are the essential facts in that case:

In February and July 2006, Lancaster Newspapers, Inc. was served with two subpoenas issued under the authority of the Twenty-Fourth Statewide Investigating Grand Jury, commanding it to produce four computer workstations (Subpoena 314) and two additional computer hard drives (Subpoena 686). . . .The newspaper maintains that . . . , it agreed to provide the Attorney General's office with all available documentation deriving from the hard drives related to the subject of the investigation and to make the computer hardware available for inspection at Lancaster Newspapers' office in the presence of newspaper personnel. Upon rejection of such conditions by the Office of Attorney General, the newspaper initiated proceedings before the judge supervising the grand jury proceedings, seeking to quash Subpoena 314. The newspaper contended, inter alia, that the subpoena was overbroad because it required production of information that was not relevant to the grand jury investigation. . . .

In re Twenty-Fourth Statewide Investigating Grand Jury, supra. The judge supervising the grand jury denied the motion to quash, and the newspaper appealed.

On appeal to the Pennsylvania Supreme Court, the newspaper argued that the subpoena in question was

overbroad, in that it obviously requires production and potential disclosure of information beyond that which is relevant to the grand jury inquiry. The newspaper discusses a “chilling effect” that the surrender of entire computer hard drives to the government by the media will have on its ability to utilize confidential sources and to gather news information. According to the newspaper, less intrusive means were available to be utilized by the government and/or grand jury to accomplish their investigative purposes.

In re Twenty-Fourth Statewide Investigating Grand Jury, supra. This is a good argument because the U.S. Supreme Court and state courts have read a “reasonableness” requirement into subpoenas requiring the production of evidence.

The reasonableness requirement means, for example, that the government can’t just issue a subpoena asking for “everything” a business has and expect to prevail, at least not unless it can show why it really, truly needs “everything” the business has. The reasonableness requirement is intended to protect subpoena recipients by ensuring that they do not have to expend impossible and/or unreasonably expensive efforts to comply with subpoenas. It tries to strike a balance between what the government really needs and what is fair to the person or entity that has to locate and produce all this evidence. It also, as you can see from the argument above, tries to ensure that subpoenas are no more intrusive than they have to be.

The novel issue that’s come up in the few reported computer subpoena cases is whether the government (i) can simply require a person or a business to produce their computer equipment (hard drives, computers, data storage devices) or (ii) must instead focus the subpoena’s demands on producing particular information that is relevant to the grand jury’s inquiry. In an early computer evidence case – In re Grand Jury Subpoena Duces Tecum, 846 F. Supp. 11 (Southern District of New York 1994) – a federal court bought the subpoena recipient’s argument that requiring someone to produce hard drives and other computer hardware, simply to give the government access to some of the data stored in those devices, was unreasonable because it was analogous to requiring a business to produce all its file cabinets, with all the documents contained in them, so the government could gain access to the subset of documents that were actually relevant to the grand jury’s investigation. The New York court granted the subpoena recipient’s motion to quash and told the grand jury to try again, this time with a subpoena that only required the production of information relevant to its investigation.

And that’s essentially what the Pennsylvania Supreme Court did. It found that the subpoena at issue in that case was in fact overbroad and vacated the lower court’s order enforcing it, without prejudice . . . which means the state Attorney General’s office could try again with another subpoena. The court noted that one way to resolve the problem would be for the lower court to appoint a neutral expert who would review the data on the hard drives and decide what should, and what should not, be produced to the Attorney General. It also noted there might be valid reasons why the Attorney General’s office would need the hard drives – one being to have them forensically examined.

The Pennsylvania court explained, however, that “any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause.” In re Twenty-Fourth Statewide Investigating Grand Jury, supra. Requiring the government to obtain a search warrant further protects the subpoena recipient (the newspaper, here) because it means the government has to show specific reasons why it needs particular evidence being held by the subpoena recipient.

That raises the bar for the government and, in so doing, protects citizens, because subpoenas issue with no showing of probable cause or any other reason to believe relevant evidence will be produced. Earlier, I talked about the two U.S. models of criminal investigation; each has its own way of trying to protect individual rights of privacy and possession of property: The traditional law enforcement model does that by requiring police to obtain a search warrant based on probable cause or otherwise satisfy the requirements of the Fourth Amendment before they go out and get evidence. The grand jury model does that by allowing the recipient of a subpoena to go to court and move to quash the subpoena. Here, the Pennsylvania Supreme Court was playing Solomon, to some extent by holding that some evidence just may not be obtainable by grand jury subpoena; if and when that is the case, the Fourth Amendment gives the government another way to go about trying to obtain that evidence.

The bottom line here is that if you or anyone you know ever receives a grand jury subpoena requiring the production of hard drives and other computer hardware, it might be a good idea to consult a lawyer and see if the terms of the subpoena seem to be overbroad. That can be very important because once someone produces evidence to a grand jury, they waive their rights under the Fourth and Fifth Amendments to claim that the evidence was obtained illegally.